The Fake Voter Fraud Epidemic and the 2012 Election

Of all the developments in The Voting Wars since 2000, the lead story has to be the successful Republican effort to create an illusion of a voter fraud epidemic used to justify a host of laws, especially tough new state voter identification requirements, with the aim to suppress Democratic turnout and to excite the Republican base about “stolen” elections. Democrats sometimes have exaggerated the likely effects of such laws on turnout–we won’t see millions of voters disenfranchised by state voter id laws, for example. But in a very close presidential election, as we are likely to see in November, new voter id rules, voter purges in places like Colorado and Florida, cutbacks in early voting in Ohio, and other technical changes have the potential to suppress Democratic turnout enough to swing the election from Obama to Romney.

How did we get here? Our story begins with what Josh has aptly referred to as “bamboozlement” by a group of political operatives, “The Fraudulent Fraud Squad.“Chapter 2 of The Voting Wars tells the whole story, but here’s a brief sketch. The disputed 2000 election made clear to political operatives that the rules of the game could matter at the margin, and in our hyper-partisan and evenly divided country more elections would be decided at the margin. When Congress considered fixes to our election system, after 2000, a Republican insider named Thor Hearne–likely at the urging of Karl Rove–created a phony think tank, the “American Center for Voting Rights” to testify before a congressional committee and push the line that “voter fraud” was rampant. (The term “voter fraud” is actually relatively new, and more election crimes appear to be committed by election officials and party operatives than voters.) ACVR relied upon discredited allegations of election fraud, and upon proven evidence of voter registration fraud. Some of the allegations had racial undertones, such as a focus on a false registration of “Mr. Jive F. Turkey, Sr.” and work by the NAACP. Registration fraud was a real problem thanks to ACORN’s broken business model, which used very poor people to register voters and stood ready to fire them if they did not produce enough voter registrations. While that led ACORN workers to turn in lots of “Mickey Mouse” registration cards, I’ve yet to see proof that a single fraudulent ACORN-related registration card led to an actual fraudulently cast ballot. ACVR eventually disappeared in the dark of night, with the website coming down without warning and Thor Hearne scrubbing his resume of references to his organization. But by then many on the right were pushing the voter fraud line hard. For example Dick Armey claimed that 3% of votes cast were fraudulent Democratic votes and that the problem was especially bad in “urban areas” in the “inner cities.” Michele Malkin suggested that voter fraud would infect the 2010 elections, but she abandoned the claim when Republicans gave Democrats a “thumping” in that election. Importantly, Republicans tied their claims of voter fraud to ostensible fraud prevention measures which would be most likely to depress Democratic turnout, but they ignored measures which would actually combat real problems of fraud. So Republicans pushed hard for voter identification laws, which would prevent one person from impersonating another at the polls. But the tell that Republicans were not serious about fraud prevention was their failure to call for laws limiting absentee balloting to those with a valid excuse for not voting at the polling place. A recent News21 survey of prosecutions in all 50 states shows that vote buying through absentee ballots is a real–though relatively small– problem. That survey found that impersonation fraud is almost non-existent–10 allegations across the country in the last decade. It’s no wonder, as impersonation fraud is an exceedingly dumb way to seal an election. Yet the prevalence of voter impersonation fraud is central to Republican justifications for voter i.d. laws, and so in researching my book I went looking for any case in the last generation in which voter impersonation fraud would have happened on a large enough scale that could have conceivably affected the outcome of the election. I could find nothing. For five years the Bush Justice Department pushed hard for election prosecutions across the U.S., and came up with no impersonation fraud conspiracies. Same with Texas. And at the recent Pennsylvania trial over its new voter id law, the state conceded it knew of no cases of impersonation voter fraud. Hans von Spakovsky, one of the charter members of the Fraudulent Fraud Squad, claimed that there was such “recent” evidence of a problem with impersonation fraud, and he cited to a grand jury report issued in 1984 by the Brooklyn (N.Y.) district attorney’s office. (Put aside the fact that 1984 is not so recent.) I asked von Spakovsky for a copy of the report. I heard nothing from him, even though he had contacted me in the past pitching items to include on my Election Law Blog. I wrote to the president of the Heritage Foundation, where von Spakovsky works, asking for the report, and noting that good scholarship requires that scholars make their data available for verification. Silence. TPM ran a story on it. Silence. A law librarian at UC Irvine finally was able to track down a copy of the report from the district attorney’s office. And guess what? The grand jury found lots of shenanigans by election officials and party officials (including party officials hiding in the ceiling of the men’s room of the Brooklyn Board of Elections to change voter registration after dark). But virtually no cases of voter impersonation fraud and nothing done without the collusion of election officials. But by then, von Spakovsky had moved on. In a syndicated column, he wrote of an election allegedly stolen by at least 50 illegal votes cast by Somalis voting in Kansas. When I pointed out on my blog that the court examining these claims found no proof of illegal voting and that the election took place in Missouri, not Kansas, he corrected the column’s reference to Kansas, but did nothing to remove his discredited claim of fraud in the election. More recently, von Spakovsky and his co-author John Fund wrote a book in which they rely on wholly discredited allegations that fraudulent voting was responsible for Al Franken’s win in Minnesota over Norm Coleman in the recount and litigation over the disputed Minnesota U.S. Senate race. This is the modus operandi of the Fraudulent Fraud Squad. Use false and exaggerated claims. Don’t correct the record when proven wrong. Use a bait-and-switch on fraud allegations to justify laws which don’t prevent fraud. Make people believe voter fraud is an epidemic when it’s not. And call those who point out the truth “vote fraud deniers.” In the meantime, Republican legislatures and election officials change election rules to make it harder to register and vote in the name of fraud prevention and voter confidence, confidence which political operatives have manipulated with unfounded and exaggerated allegations of voter fraud.